Rail Corporation NSW v Vero Insurance Ltd - [2012] NSWSC 632

Supreme Court

New South Wales

Medium Neutral Citation: Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632
Hearing dates: 18/04/2011-19/04/201127/04/2011, 29/04/2011,02/05/2011
Decision date: 08 June 2012
Jurisdiction: Civil
Before: Garling J
Decision:
(1) Judgment for the plaintiffs.
(2) Parties to file and serve short minutes of order on or before 4pm 22 June 2012 setting out the orders for which they contend in light of the judgment.
(3) If any party seeks an order other than that the defendant is to pay the plaintiffs' costs on the usual basis, any such application together with submissions in support are to be filed and served by 4pm 22 June 2012.
(4) Stand proceedings over for further directions to 9.30am 29 June 2012.

Catchwords:
CIVIL - Negligence - Collision between car and train at level crossing - Local driver of car deceased - Driver of car negligent - Whether contributory negligence by RailCorp or Country Rail Infrastructure Authority - Maximum speed through crossing not negligent

CIVIL - Suicide - No presumption against committing suicide - Proper inference on the evidence - Whether intentionally drove car onto rail track to commit suicide - Collision due to inadvertence

INSURANCE LAW - Collision between car and train at level crossing due to driver inadvertence - Driver of car deceased - Section 51 Insurance Contracts Act - Whether legal liability on the part of driver - Whether CTP insurer indemnified driver of car - Whether collision was accident within the meaning of the insurance policy - Accident undefined in policy - Common law principles - Collision accidental - Whether criminal offence excluding recovery - Difference between civil and criminal negligence - Plaintiffs entitled to recover from insurer -

INSURANCE LAW - Collision between car and train at level crossing - Whether claim by RailCorp for alternative travel costs within insurance indemnity - Alternate transport costs pure economic loss - Whether policy's 'legal liability for loss or damage to other people's property' incorporates claim for pure economic loss - Alternate transport relates to running RailCorp's passenger services and not to damage of property - Outside coverage of policy
ESTOPPEL - Whether Country Rail Infrastructure Authority precluded from proceeding with claim because of conduct prior to commencing proceedings - Whether 2009 agreement between second plaintiff and defendant to discontinue proceedings - Reservation to defendant's agreement that not prevented from bringing cross-claim - No basis second plaintiff would be excused completely from litigation - Defence not established
Legislation Cited: Civil Liability Act 2002
Crimes Act 1900
Insurance Contracts Act 1984 (Cth)
Rail Safety Act 2008
Transport Administration Act 1988
Cases Cited: American House Assurance Company v King (as Executrix of the Estate of the Late Frederick King) [2001] NSWCA 201
Australian Casualty Co Ltd v Federico (1986) 160 CLR 513
Fenton v Thorley & Co Ltd [1903] AC 443
Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66
Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; 210 CLR 181
McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579
Pacific Carriers Limited v BNP Paribas [2004] HCA 35; 218 CLR 451
Phoenix Commercial Enterprises Pty Limited v City of Canada Bay Council [2010] NSWCA 64
Wilkie v Gordian Runoff Limited [2005] HCA 17; 221 CLR 522
Category: Principal judgment
Parties: Rail Corporation NSW (P1)
Country Rail Infrastructure Authority (P2)
Vero Insurance Ltd (D)
Representation: G Watson SC / D Lloyd (P1-2)
R Burbidge QC / M Scott (D)
DLA Phillips Fox (P1-2)
Lander & Rogers (D)

File Number(s): 2008/289483

Judgment

At about 5.10pm on 4 May 2004, the peace and quiet of the small township Baan Baa in northwest NSW was shattered when a CountryLink Xplorer train collided with a Toyota motor vehicle being driven by a well known local resident, Phyllis Jeffries, at the level crossing where Baranbah Street crossed the railway line.

Mrs Jeffries was killed instantly.

Both carriages of the CountryLink Xplorer service were derailed. There was also damage to the rail infrastructure which was owned by Rail Infrastructure Corporation.

Rail Corporation NSW, which owned the two carriages and ran the passenger service, incurred expense in having the carriages repaired and in having buses transport passengers around the accident site until the infrastructure was repaired.

Vero Insurance Ltd (Vero), the defendant, issued a policy of insurance to Ms Jeffries to insure her and her vehicle against claims for damages to the property of others if she was negligent.

Because Mrs Jeffries is dead, Rail Corporation NSW ("RailCorp" as it usually known) and the Country Rail Infrastructure Authority ("CRIA"), which took over from the Rail Infrastructure Corporation ("RIC") in this geographical area, claim from Vero all of their costs and losses associated with the accident. Vero disputes that it is so liable.

This judgment is to determine whether the plaintiffs RailCorp and CRIA can recover their losses directly from the defendant, Vero, and if so, in what amount.

Parties

RailCorp is a state-owned corporation and owns and operates both rolling stock and railway passenger services throughout NSW.

RailCorp owned the two carriages of the CountryLink Xplorer passenger service (NP23a) being cars numbered EA2507 and EC2523, which were involved in the accident.

The second plaintiff, CRIA, is a statutory corporation that was constituted on 1 July 2010, well after the accident in question. CRIA is not a new legal entity but was taken for all purposes to be a continuation of, and the same legal entity as, the RIC: s 19A Transport Administration Act 1988.

CRIA owned the rail infrastructure at and in the vicinity of the site of the accident. By rail infrastructure, I mean the railway lines, signalling equipment and the attendant controlling mechanisms and features which accompany railway lines and signalling equipment.

Phyllis Doreen Jeffries was born on 25 May 1949. She was the registered owner of a white Toyota Avalon motor vehicle registered number AIQ 58V. She was driving this motor vehicle at the time of the accident.

Vero insured Mrs Jeffries and her vehicle under the Secure Motor Plus Insurance Policy No. RSM 000689173. The policy provided cover for what is usually known as third party property damage.

RailCorp and CRIA are entitled to proceed directly against Vero because of the terms of s 51 of the Insurance Contracts Act 1984 (Cth) which makes provision for such direct cause of action where the insured, here Mrs Jeffries, has died.

Principal Issues

The principle issues in the proceedings can conveniently be grouped in the following way:

(a) Was Mrs Jeffries negligent in the manner in which she drove her vehicle whilst approaching and crossing the train line at Baan Baa;

(b) Was Mrs Jeffries committing suicide by intentionally driving her car onto the train line as the train was approaching, knowing that the train would collide with it;

(c) Was there any conduct on the part of either the first or the second plaintiff which was causally related to the damage which occurred, and which amounted to contributory negligence;

(d) Upon the true interpretation of the insurance policy, was Vero:

(i) obliged to indemnify Mrs Jeffries with respect to any legal liability which she had to the plaintiffs for loss or damage to their property;

(ii) was any loss, damage or legal liability intentionally caused by Mrs Jeffries;

(iii) do any of the exclusion clauses relied upon by Vero operate so as to exclude indemnity;

(iv) does the claim by RailCorp for alternate travel costs, fall within the indemnity which Vero provided by its policy to Mrs Jeffries?

(e) Is the second plaintiff precluded from proceeding with its claim because of its conduct prior to commencing these proceedings?

Some features of the proceedings

It is useful at the commencement of this judgment to point out some particular features of the proceedings that will give the issues covered in this judgment a degree of context.

The Office of Transport Safety Investigations ("OTSI") investigated the accident. This is an independent statutory body, whose principal responsibility is to conduct investigations into transport safety incidents, such as rail accidents, to produce reports that identify all of the contributory factors to the incident, and to make recommendations to prevent their occurrence.

In the course of investigating this level crossing collision, OTSI produced two reports. The Railway Safety Investigation Report (the "OTSI report") dated 24 February 2005, was admitted into evidence. Prior to the trial, I granted leave pursuant to s 66 of the Rail Safety Act 2008 for the parties to tender the OTSI report. This report, which was also the final report, became Exhibit J.

On the issue of how the accident happened, each of the parties tendered reports of expert mechanical engineers and their joint report. They did not attend to give oral evidence. For the plaintiff, Associate Professor Richard Dwight provided a report, and for Vero, three reports of Mr William Keramidas were tendered. Their joint report was also tendered. There was other expert material that assisted those mechanical engineers.

Insofar as the state of mind of Mrs Jeffries was concerned, the parties tendered the reports of expert psychiatrists and also a joint report of all three expert psychiatrists. The psychiatrists gave their evidence in a concurrent session. As well, there was other evidence that touched on this issue, including Mrs Jeffries' treating general practitioner.

On the question of damages, I referred to Mr Owain Stone, an expert, to the issue of the quantification of damages. His report was tendered and, without objection, I ordered that it be adopted. Accordingly, except for the issue of whether the alternative transport costs were covered by the policy, no disputed issue of quantum arises for determination.

The hearing took place initially in Tamworth, when the Court took the opportunity to view the level crossing in question, the township of Baan Baa, including the location of the house in which Mrs Jeffries lived, the roads upon which she was seen driving at about the time of the accident and other locations from where witnesses saw what occurred, or else the lead up to what occurred.

As well, the parties arranged for the Court and senior counsel for the parties to travel in the driver's cab of an identical Xplorer train travelling north from Boggabri through the site of the level crossing at Baan Baa to Narrabri.

The view took place on Tuesday 19 April 2011, that is, about three weeks before the anniversary of the date of the accident. The train upon which the Court travelled was identical to the one involved in the collision and also on the identical scheduled service to that of the train involved in the accident. Although it is clear that the light on the day of the view would have been different from the day of the level crossing collision, not the least because it was three weeks later in the year, I was satisfied that the view obtained from the driver's cabin gave a good indication of what the driver and crewmember of the CountryLink Xplorer train would have been able to see at the time of the collision.

There were a number of changes to the level crossing at the time of the view and the train trip, compared to when the accident occurred. The principal amongst these was that the level crossing had been fitted with automatic boom gates and warning bells that were not in existence at the time of the accident.

In viewing what occurred, it was necessary to make allowances for those changes. It is inevitable that in coming to the conclusions which I have in this judgment, what I saw on the view and from the train have influenced the findings to which I have come.

The Baan Baa level crossing

Baan Baa is a small town about 20km to the northwest of Boggabri along the Kamilaroi Highway. Further north of Baan Baa, about 38km, is the town of Narrabri.

The railway line, which is a single track line at the level crossing, generally travels in a north/south direction through the town of Baan Baa. To the east of the railway line is the Kamilaroi Highway, which also generally travels in a north/south direction. To the immediate west of the railway line and parallel to it, is Bundah Street, which is sealed for traffic travelling south from the railway line down towards the primary school, but is unsealed leading north from the area of the level crossing to a grain silo complex.

Baranbah Street crosses the railway line in a generally east/west direction. It continues on out of Baan Baa in a generally south/west direction. To the east of the Kamilaroi Highway is a part of the Baan Baa township: there are residential houses there, a hotel and a community hall.

To the west of the railway line is the Baan Baa Primary School and a number of houses and residential properties. To the north of the level crossing is a grain silo complex which has a number of railway infrastructure features to it, both on the eastern and western sides of the railway line including vehicle access and train access to the silo complex via branch or siding lines. The complex itself played no part in what occurred. However, its relevance is that the train derailed where some of the siding lines for the silo complex left the main line.

Baranbah Street, where it crosses the railway line, is a two lane road in the sense that it is wide enough to accommodate vehicles travelling both east and west at the same time. The southern boundary of Baranbah Street, which is the commencement of the level crossing for trains travelling north, is at 530.780km. This measurement is taken from a designated point at Central Railway Station in Sydney.

For traffic travelling either east or west in Baranbah Street as it approached the crossing, there was located about five metres or so from the crossing, and on the left hand side of the direction of travel, a signpost which had three signs erected on it. The topmost of those signs was two white diagonal boards arranged in the shape of an "X" with the black words "Railway Crossing" written on them. Immediately below that was a standard Stop sign. Immediately below the Stop sign was an almost square white sign which had on it in black printing the words "Look for Trains".

Baranbah Street did not have any painted markings on it to indicate stopping points or stop lines. It had a sealed surface.

As one approached along Baranbah Street towards the railway tracks, and about half a metre or so from them, a steel plate commenced which continued across the railway tracks to the other side of the railway crossing, again for about one metre. The metal plate covered the entire width of Baranbah Street. There were gaps in the metal plate on either side of the railway tracks, sufficient in width to permit the wheels of a train, and the carriages of a train, to pass easily over the railway tracks.

The metal plate across which motor vehicles drove through the level crossing had, at the transition point from the sealed road surface to the metal plate, a concrete footing. The metal plate itself then consisted of a patterned plate that had a slightly rough finish. Whilst it was intended to provide a completely level surface to cross from one side of the railway tracks to the other, I am satisfied that by reason of the presence of the gaps in the metal plate between the concrete supports at the transition points and on either side of the railway track, and also because the top of the railway track was slightly higher than the metal plate, that there would have been a less than completely smooth passage across the railway tracks. However, the height differential between the top of the railway tracks and the metal plate was in the order of 1cm. It was hardly noticeable.

On the western approach to the level crossing in Baranbah Street, there was an advanced warning sign approximately 38m prior to the crossing that indicated the presence of a level crossing.

The Kamilaroi Highway on the eastern side of the railway line was about 35m from it. For vehicles travelling in an easterly direction across the level crossing, when arriving at the Kamilaroi Highway they were faced with a standard Give Way sign.

There were no traffic lights or boom gates on the level crossing. It was known in railway parlance as a passive crossing. There was no building or other structure causing any obstruction to the view of traffic on the level crossing in either direction along Baranbah Street. However, for traffic travelling in an easterly direction, as one approached the crossing and looked to the south, the view was across open paddocks which from time to time, had grass or other vegetation in them and, depending on the height of the vegetation and the distance attempting to be viewed, provided some obstruction to a driver's view. As well, at the time of the collision there was a row of trees between the school and the railway track. These would have provided a significant obstruction to a view of the northbound train for a vehicle travelling in Baranbah Street depending on where the train and the vehicle were at any given moment in time. These trees had been removed by the time of the view.

The track details leading up to and surrounding the level crossing are relatively straightforward. As I have said, the track was a single line section located on what was a branch line from Werris Creek to Moree. The Baranbah Street level crossing was located 3.8km north from the start of a straight section of track, which then ran for approximately 35km in a northerly direction towards Narrabri. The track gradient leading in to the Baan Baa crossing was a relatively gentle fall to the crossing which then levelled out a little to the north of the level crossing.

The permissible track speed for Xplorer and XPT trains on that section of track was 140km/h.

According to the OTSI report, at the time of the accident there was an average of 11 train movements a day through the crossing.

It was necessary for any resident of the town of Baan Baa to pass through the level crossing if they were to drive or walk between the eastern part of the town and the western part of the town. There was no other connecting roadway between these two parts of the town.

Mrs Jeffries lived in the eastern part of the town. Her elderly parents lived about 2km to the west of the level crossing along Baranbah Street.

No one living in Baan Baa could have been unaware of the presence of the railway track which divided the town in two, nor could they have been unaware of the existence of the level crossing and its various features, which I have described above. Each of these features was obvious and, I am satisfied, would have been well-known to every resident of Baan Baa and certainly to Mrs Jeffries.

The fact that there were a number of regular scheduled services for the Xplorer train between Boggabri and Narrabri (and in the other direction) would also have been well-known to all of the residents of Baan Baa, including Mrs Jeffries. As well, the residents, including Mrs Jeffries, would also have known that freight trains, which did not run to a regular schedule, used the line. It must also have been well known, as Mrs Allaway said, that the trains did not always run strictly on time, or in accordance with their schedule.

The Collision - a factual overview

The collision occurred at about 5.10pm on 4 May 2004.

This overview of the facts is largely drawn from the OTSI Report. The report was tendered without objection and it was accepted by both parties that it accurately set out what occurred. Although each of Associate Professor Dwight and Mr William Keramidas, who were experts retained by the parties to analyse and reconstruct the collision, expressed views on these matters which did not necessarily agree with each other or the OTSI Report, and although neither was required for cross-examination, I prefer the evidence in the OTSI Report, where it differs from either or both of the expert reports. There are two reasons for that, first OTSI is a body with acknowledged expertise in this area, and with considerable experience in investigating railway collisions and determining what occurred. Second, OTSI is independent of either party, and not a part of this litigation process. It had no particular interest other than to record the facts and analyse them for the information of all concerned.

At about 5.10pm on 4 May 2004, the Xplorer passenger service was travelling from Werris Creek to Moree when it collided with Mrs Jeffries' motor vehicle.

The service, which originated in Sydney at 10.05am, travelled north to Werris Creek where it divided into two trains, each of two carriages. One service travelled to Armidale and the other to Moree. The train for Moree left Werris Creek at 3.45pm with 33 passengers and three crew members on board. Its journey from Moree through Boggabri to the scene of the collision was generally uneventful. It departed Boggabri on schedule at 5.03pm, at which time its headlights and ditch light were illuminated.

A data logger was installed on the Xplorer train. This is a piece of equipment that monitors and records various characteristics of the performance of the train, and the commands given or steps taken by the driver. Once the information stored on a data logger is extracted by a downloading procedure, it requires expert interpretation. The interpretation of such data is a regular feature of reports prepared by OTSI. I am satisfied that their report is reliable.

The data logger established that at 5.09.36pm the train was approximately 1,440 metres from the level crossing. At that point it was on slight downhill gradient and was travelling at the speed of 139 km/h.

At 5.09.59pm, when the train was approximately 500m from the level crossing, the train driver sounded the horn. This is a routine action on approaching any level crossing. At that time the driver, Mr Geoffrey Houlihan, and the Passenger Services Supervisor, Mr Ronald Curtis, were in the driver's cabin at the front of the leading carriage.

At 5.10.04pm the driver sounded the train's horn for a second time, with a sustained application for six seconds. At 5.10.06pm, when the train was about 250m from the crossing, the driver also applied the emergency brake. The horn was activated again at 5.10.11pm.

The train collided with the motor vehicle at 5.10.14pm, at which time the train was travelling at about 130km/h.

Although the train initially remained on the rails with the wreckage of the motor vehicle entangled around the front of it, at about 15m past the point of impact the wreckage of the motor vehicle struck a points indicator and was disentangled from the train, coming to rest about 65m north of the crossing and 7m west of the track.

The train continued to move forward with the emergency brakes still applied. After traversing the point at which the line for a siding left the main line, the leading bogie on the train derailed towards to the western side of the track. Derailment occurred 248 metres past the point of impact. Ultimately, after a further distance, the leading carriage toppled onto its right hand side coming to rest at about 420m past the point of impact. The second carriage did not derail.

At the time of the collision, the weather was dry and sunny. Sunset on the day was due at 5.15pm.

As is obvious, at the time the train passed through the level crossing, the motor vehicle was "foul" of the line. That is to say, a portion of the motor vehicle was located in a position which meant that the train collided with it.

It is convenient to note that a train, such as the Xplorer involved in this collision, if travelling at 140km/h, will take about 700m to come to a complete stop once the emergency brakes are applied.

It is also convenient to note that the collision occurred 15 seconds after the train driver first sounded the horn. In that period of time, the train driver sounded his horn twice again, one blast of the horn lasting about six seconds, from ten seconds before the collision to four seconds before it, and the final blast, three seconds before the collision. About eight seconds prior to the collision occurring he also applied the emergency brakes.

There was no criticism in the submissions of any party of Mr Houlihan's conduct in all that he did whilst driving the train on that afternoon. I am well satisfied that he acted entirely appropriately and did all that he could do, and could be expected to do, in the circumstances with which he was confronted. He is not to be criticised for anything which happened in this collision.

His evidence, as was that of Mr Curtis, was carefully examined to establish what he observed of the movements of the car at the relevant time.

The Xplorer train was extensively damaged as a result of the collision. There was also damage to some parts of the rail infrastructure. All of the physical damage resulted directly from the collision and its immediate aftermath.

The movements of Mrs Jeffries' motor vehicle

It is undoubted that the car, or a portion of it, was across the railway tracks at the time of the arrival of the train at the level crossing and the collision. The way in which the car came to be in that position is the subject of considerable dispute between the parties.

In short, RailCorp submitted that the car was still moving, albeit slowly, as a result of inadvertence at the time it collided with the train. Vero's case was that the car had been intentionally stopped for eight seconds, or at least an identifiable discrete period, in the centre of the tracks, awaiting the arrival of the train.

Some uncontroversial matters can be noted.

First, where a level crossing has a stop sign, as this one did, then Australian Road Rule 121 required that a driver of a motor vehicle stop at the Stop Sign and give way to any train which is approaching or entering on the crossing.

Australian Road Rule 123 prohibited a driver from entering a level crossing if a train is on or entering the crossing, if a train approaching the crossing can be seen from the crossing, or if the train is sounding a warning and there would be a danger of a collision with the train if the driver entered the crossing.

Simply put, the Road Rules require that a motor vehicle must give way to a train on a level crossing.

The motor vehicle owned by Mrs Jeffries was a Toyota Avalon that was manufactured in 1997. It was sold to Mrs Jeffries on 15 November 2000 as a new car. It was an automatic vehicle and it had tinted windows. Mrs Jeffries kept her motor vehicle in good condition and had it regularly serviced by the Toyota dealer at Narrabri from where she had purchased it.

Mr Nairn, the Service Manager at the Toyota Dealership, expressed the view, which I accept, that the car was regularly serviced, that it was in general a very reliable vehicle and had no major defects. He described the sound insulation within the Toyota Avalon as "very, very good". Prior to the collision the vehicle was last serviced on 5 March 2004. At that time, it had driven 99,859km and the principal issue, which brought it to the dealer, was that Mrs Jeffries was concerned about a noise emanating from the brakes. The brake discs were machined. The problem was described by Mr Nairn as "minor and not safety related".

There is no evidence that the motor vehicle was in any way defective at the time of this collision. I am satisfied that it was not.

Mr Nairn also gave evidence about the performance characteristics of an automatic Toyota Avalon. He noted that, if the vehicle was brought to a stop on level ground and first gear was selected, when the foot brake was released by the driver's foot, the vehicle would move slowly forward.

Senior Sergeant Malcolm Unicomb gave unchallenged evidence by a statement of his observations of the state of the motor vehicle after the collision. Senior Sergeant Unicomb has some degree of expertise in road safety and investigations into motor vehicle accidents.

He said that when he inspected the motor vehicle after the collision, which was located at the Narrabri Police Station, he observed that although the rear tail light assemblies were both damaged, the bulbs in each assembly were intact. He examined the bulbs after their removal from the vehicle and concluded from their physical appearance that neither the brake lamps nor the tail lights of the vehicle were in operation at the time of the impact of the train with the car. He also examined the reversing light bulbs and concluded that the reversing lights of the vehicle were not in operation at the time of impact.

He noted in a further statement which was prepared specifically for the purpose of these proceedings, that this conclusion did not enable him to determine for what period of time the brake lights of the car were not in operation prior to the impact. He noted that filaments within the bulbs of brake lights cool rapidly and, accordingly, this was consistent with his physical findings that Mrs Jeffries may have removed pressure from the brake pedal some time before the collision. He did not fix the possible time but described it as "momentarily". Clearly, the minimum time has to be sufficient to enable the filaments within the bulbs to have cooled down, before the impact. No attempt was made to quantify this minimum time.

Detective Senior Constable Graeme Olsson, an expert motor vehicle mechanic, also examined Mrs Jeffries' vehicle. In his second statement, made on 11 January 2005, and having had the benefit of a joint examination with Mr Jeffrey Gudmann, an automotive expert retained by Vero, he came to the conclusion that:

"the engine was running prior to the impact damage sustained with the crankshaft key fracturing the keyway in the pulley and the crankshaft rotating approximately 40 degrees further than the pulley before the engine stopped due to load and extensive engine damage. Due to the extensive damage sustained to the vehicle transmission and transmission gear selector I am unable to determine what position the gear selector was in at the time of the collision."

Mr Gudmann gave evidence to similar effect. He said:

"3.3 There was however reliable evidence detected in connection with the damage to and condition of the protruding end shaft of the crankshaft and its pulley wheel to demonstrate that the crankshaft was being rotated by the engine at the time of impact. Therefore, it was considered on the balance of probability that the engine of the vehicle was most likely running at the time of impact by the train."

Mrs Allaway, a neighbour and friend of Mrs Jeffries, was with her during the afternoon prior to the collision. She was a close friend of Mrs Jeffries. She said that Mrs Jeffries was accustomed to visiting her elderly parents regularly usually once, or perhaps twice, per day. Mr Rodney Jeffries, the son of Mrs Jeffries, gave similar evidence.

It seems that Mrs Jeffries had not visited her parents on the day of the collision. In her statement, Mrs Allaway notes that she recalls Mrs Jeffries telling her on the day of the collision that "I am going to see the oldies". Since, until she turned her car around, she was driving towards her parents' house, which was located further west along Baranbah Street than Mr Shields' house, I am well satisfied that she was driving to see them, as was her regular habit, and as she told Mrs Allaway she was going to do.

A statement was tendered from Mr Michael Shields who was a resident of Baan Baa. This evidence dealt with the movement of Mrs Jeffries' vehicle before it stopped at the level crossing.

In that statement, he recorded the fact that he lived on the western side of the level crossing, about 600-800m from it. His house was identified to the Court on the view. I accept his estimate of distance from the crossing. He knew Mrs Jeffries and recognised her motor vehicle. He said he saw Mrs Jeffries driving towards the level crossing past his house. This means that she was driving in an easterly direction back towards her house, and away from her parents' house. He said that she waved to him in response to his wave of greeting to her. He said that the vehicle was travelling at about 40 km/h which was the usual speed at which Mrs Jeffries drove around Baan Baa. He did not see Mrs Jeffries driving west past his house. He did not see her turn around, as she must have done, somewhere to the west of his house. His evidence did not identify any obvious reason for Mrs Jeffries to have turned the vehicle around.

I note that the conclusion of Vero's expert, Mr Keramidas, in his report of 29 October 2009, is that Mrs Jeffries executed her U turn about 60m to the west of the level crossing. This is in direct contradiction of Mr Shields' evidence. Mr Shields' statement was not challenged. I accept his eyewitness account in preference to Mr Keramidas' expert conclusions. Mr Keramidas' opinion is derived from his interpretation of the data of, and conclusions of Mr Tanti, which interpretive exercise is likely to be less reliable than Mr Shields' eyewitness account.

A very short time later, Mr Shields heard the whistle sounding on the Xplorer train. He then heard a second whistle sounding and this caught his attention. He then proceeded to the scene where he saw that there had been an accident.

Mr Tanti, a director of Mastertech Industries, a motor mechanic business, prepared a report in which he recorded that he retrieved stored data within the Electronic Control Unit ("ECU") and Anti-locking Braking System ("ABS") contained within the Toyota, and analysed the information.

He concluded in his report that:

"From the wheel speed sensor readings, I can conclude that the vehicle made a right hand turn at about 10 kilometres per hour, whilst the driver had pressure on the foot brake. The foot brake has then been released and the speed of the vehicle accelerated up to approximately 18 to 19 kilometres per hour. The vehicle travelled nearly 60 metres when it came to a stationary position. This is known as all sensors recorded a reading of 2 kilometres per hour, which can be explained by non-rotating wheels. Pressure was then applied to the foot brake.

Whilst in this stationary position the vehicle's engine speed idled at 795 revolutions per minute with a throttle position at 13%. The air intake was at 23 Degrees Celsius, which would also be relative to outside temperature. The gear selection was in 1st gear position and that was shown by the 'shift' at 1st."

His oral evidence expanded upon these conclusions in a way which indicated other conclusions could be drawn.

For example, his conclusion that the vehicle was stationary when the reading from the ECU was 2 km/h, was accepted by him to be more properly expressed in this way, namely that the car was moving either at 2 km/h or less, or else was stationary and not moving at all, or some combination of these alternatives.

Mr Tanti said he was unable to be precise about when any particular frame of data upon which he had relied for his conclusions was recorded. It is apparent from his evidence and his report that he was able to extract 54 frames depicting data from the ECU with which he was provided. The extracted frames were numbered in reverse order so that frame number 1/54 was the last frame immediately prior to the collision. Frame number 54/54 was the earliest frame in point of time.

There was no fixed time period between the creation of frames. A new frame would be created when an identified parameter being recorded on that frame of data, changed, that is, for example, if the speed of the vehicle went from zero to five km/h, a new frame would be created. Or, alternatively, if there were no activity at all then, after a fixed default period, a new frame would be created which simply recorded the same material as the previous frame.

Mr Tanti could not recall specifically the time period for the default recording of a frame, but he thought that it was about 30 seconds.

In dealing with Mr Tanti's evidence, it is necessary to observe that the primary bases for his conclusions are not entirely clear. For example, in cross-examination he agreed that frame number 1/54 of the ECU diagnostic data, was the one immediately prior to the collision occurring. However, in his report he reproduced frame number 17/54 which records the vehicle's speed as zero km/h and the engine being at idle with an engine speed of 795 revolutions per minute and the throttle position at 13 per cent. Mr Tanti interpreted this to indicate that at the point of collision the vehicle was stationary and idling, because he said that to the best of his recollection, frames 1/54 to 16/54 (inclusive) showed identical details. He did not have those frame details available for checking.

However, given that this is frame number 17/54, then if no further changes were made to the vehicle's speed, the engine speed or the throttle position, for this to be the relevant final frame, a significant default period in excess of five minutes would need to have elapsed before the collision.

Alternatively, another possible explanation is that parameters other than those shown on frame number 17/54 have altered. One such parameter which is recorded on a further frame contained within Mr Tanti's report, is what position the gear selector is in and also whether the fuel pump which indicated that the engine was running, was on or not. Such material is included in frame number 27/54.

I must say that I found this aspect of Mr Tanti's less than clear.

However, I am satisfied that, from his evidence, I can draw the following conclusions:

(a) the vehicle approached its initial stopping position at about 18 to 19 km/h;

(b) the engine was running at all times leading up to the impact;

(d) the engine was idling which meant that the accelerator was not depressed or activated;

(e) the vehicle was either stationary, or else moving at less than 2 km/h.

The other evidence about the movement of the car came from observations made by Mr Houlihan and Mr Curtis. In a statement he made on 11 May 2004, to his supervisor at CountryLink, Mr Houlihan said this:

"As the train was approaching the level crossing a white car came from the left hand side (down side) of the rail crossing and appeared to be slowing down to stop at the railway crossing. The white car did stop, but the front of the car looked as if it was foul of the rail crossing. I then blew the train whistle and applied the emergency brake. The white car then moved onto the track in front of the train. I braced myself for the collision as the train struck the car."

In a statement made the following week to Detective Senior Constable Sims, Mr Houlihan said this:

"I cannot even guess at what speed the white car was travelling [when he first saw the white car come from the left hand side]. It came down slowly to the crossing and stopped 'foul' of the train. I cannot recall at what distance I was from the crossing when I saw the white car. It could have been 500 metres away at a guess.

When the car was foul of the line, I did not know if the car was going to go forward or backwards. When the white car stopped, [it] was about 70 metres from me. It seemed for ever and [a] day that the white car was stopped. Then the white car moved forward. It was just like someone had given the car a push from behind.

I knew I was going to hit the car. I braced myself. I cannot tell if the car stopped across the tracks or was still moving forward as I struck it."

I note that it would have taken the train slightly less than two seconds to travel the 70 metre distance estimated by Mr Houlihan, the period during which the car moved onto the train tracks. As my later remarks with respect to Mr Curtis' evidence record, these estimates ought not be regarded as precise or accurate measurements. My observations made on the train trip undertaken by the Court confirm that having regard to the speed at which the train was travelling, it is very hard to give accurate estimates of lineal distance to a stationary object.

In Mr Houlihan's evidence, he confirmed that:

(a) he had observed the white vehicle travelling quite slowly approaching the crossing from his left, and coming to a halt in a position that was not over the tracks but was sufficiently close to the tracks that there was at least a risk that the train would hit it;

(b) the white vehicle then stopped;

(c) it came out from its stopped position onto the track and he was unaware whether it again stopped or was still moving at the time the train hit it;

(d) the movement of the vehicle from where it was stopped, out onto the track seemed very slow to him.

Mr Curtis who was in the driver's cabin with Mr Houlihan, gave this description of what he saw in his first statement which he made on 5 May 2004. He said:

"On the straight approaching Baan Baa, I noticed a white car travelling from the school side to the highway side of the level crossing. Geoff sounded train horn. The white car stopped at the railway line then moved onto railway line and stopped again over both lines. On approaching level crossing, Geoff sounded train horn continuously and applied emergency brakes. The car was hit."

On 11 May 2004, he made a statement to the Operations Inspectors of CountryLink. In that statement, insofar as he dealt with the movement of the white car, he repeated what he had said in his statement of 5 May 2004.

As well, the statement of 11 May 2004, contained some additional information. In it, Mr Curtis said that he turned his head away "...just prior to the collision", and accordingly lost sight of the vehicle at that stage. He also gave these estimates of distances:

(a) the train was approximately 250 metres from the crossing when the car started to move slowly onto the tracks; and

(b) the train was about 100 metres from the crossing when he turned his head away.

I observe, without any criticism of Mr Curtis, who I thought was doing his best to give his evidence accurately, that it is very difficult from a train moving at a speed between 36 metres per second (130 km/h) and 38.89 metres per second (140 km/h) to accurately judge distance at a moment in time. These distances cannot be taken to be any more than estimates. It would be wrong to regard them as the equivalent of accurate measurements. The time periods involved are also very short, being a matter of seconds. The shortness of time also indicates what a difficult exercise it is to make precise estimates.

Mr Curtis was called to give evidence. In the course of his evidence he said that he first saw the white car when he was approximately 600 metres away from the level crossing, that it was approaching the level crossing and he saw it come to a stop. He judged the position at which the car stopped to be one where it was likely that the train would hit it. He said that whilst he was watching the car, it commenced to move forward very slowly and that it came to a stop in the middle of the tracks. He said that he estimated that the vehicle had commenced to move when the train was about 200 metres from away it.

It is convenient that I note at this point that Detective Senior Constable Sims, who was the officer responsible for preparing the coronial investigation, recorded in a statement that was tendered without objection, the results of a test that he undertook with a similar Toyota Avalon motor vehicle with respect to whether or not a train whistle could be heard. In a statement of 22 December 2004, he reported:

"During one of the tests I sat in the test Avalon with the windows wound up and the car radio turned down low and later off. During the re-enactment the train whistle was sounded. The sound of whistle was dampened by the cars sound insulation. I considered if the sound of the trains whistle may have startled the deceased. During the test, I found the sounding of whistle was dampened by the cars insulation qualities."

Reflecting on that statement, in his statement prepared for the purposes of this litigation, he said this:

"Whilst the train whistle was 'dampened' it was still audible during the re-enactment test described above."

The position of the vehicle during that test was at or near the level crossing. No test was undertaken of the capacity of a driver of such a vehicle to hear the train whistle whilst it was being driven along Baranbah Street to the west of the crossing or Mr Shields' house, or else in the near vicinity of, Mr Shields' house.

I note that Detective Senior Constable Sims recorded during the test that the car radio was turned down low, and later off. However, the evidence from Mr Nairn was that it was his experience when driving in Mrs Jeffries' car, either when it was left for service or else if he was with her as a passenger when trying to identify a particular fault with the car, she had the radio turned up to quite a high volume. Mr Nairn described it as being "a bit too loud for me". He then said:

"During the taking of this statement, Detective Senior Constable Sims turned the radio on in his office and I gave him a demonstration of how loud the music was. Detective Sims stated that the music was too loud for him."

Clearly, Mrs Jeffries was accustomed to playing her radio at a level well above that which Detective Senior Constable Sims used during the experiment. There is no reason to doubt that at the time of the collision, the radio was being played at its usual level. This must have had an adverse effect on the audibility of the train whistle to a person in the car. As a result, I am satisfied that the observations of Detective Senior Constable Sims about the capacity of a driver of a car in the position of Mrs Jeffries' car to have heard the whistle are of little use in determining what actually happened, and can be disregarded.

Mr Nott made a statement to police on 5 July 2004. He also gave evidence. The manner in which he gave evidence, including the time he took to answer questions, led me to form the view that he was quite uncertain about his evidence and I have concluded that his evidence before me was unreliable as to any matter of detail, particularly the detail of his observations of the way in which Mrs Jeffries was driving her car. I prefer other accounts to his, unless his evidence is corroborated independently.

According to his statement, Mr Nott was drinking beer in the Baan Baa Hotel, at the time of the collision. It was about 200 metres from the level crossing. Whilst seated at the bar of the Hotel, he could look out through the door towards the level crossing. He described three features:

(a) he saw Mrs Jeffries' car pull up at the crossing and stop for a period of "...five, ten or twenty seconds";

(b) he heard the train whistle and turned away to look at the bar. This lasted a period of about five seconds, during which time he did not see Mrs Jeffries' car; and

(c) he looked back and saw Mrs Jeffries' car in a stationary position for a period not less than five seconds and not more than ten to fifteen seconds, at which point the train hit the car. He was unable to tell whether this was the same position as the first position in which she was stopped.

Because of Mr Nott's unreliability as a witness, I do not accept his account of what he saw. In particular, I do not prefer his account of the timings of his observations in preference to the account of Mr Houlihan, the train driver, who was a far more impressive witness. As well, it is difficult to reconcile Mr Nott's timings with the timings established by the train's data logger.

Conclusion as to behaviour of the motor vehicle

The great bulk of the evidence is able to be reconciled, and is not significantly in contest.

It seems clear to me, on the probabilities, that Mrs Jeffries drove her vehicle in a generally westerly direction over the level crossing, past where Mr Shields lived, towards the direction of where her parents lived. She intended to visit them. At some point over 800m to the west of the level crossing, for an unidentified reason, she turned her vehicle around and drove back towards the level crossing. It seems quite possible that she had left something at home which she intended to take to her parents.

I am satisfied, having regard to the distances involved, the probability that her music was on loudly in her car, and the fact that the windows were closed, that it is highly unlikely that she heard any of the train whistles at that stage and that she acted in response to hearing the train whistle by turning her car around. As well, since she turned her car around to the west of Mr Shields' house, it must have taken her considerably more than 15 seconds to drive from where she executed the U-turn to the crossing, which is the elapsed time from which the train whistle was first sounded to when the collision occurred.

On the site view, the Court was in a position to observe the possible view of the train from the general vicinity of the Shields house and for a distance to the west of it. Whilst the view is across generally open paddocks, I am not satisfied, by reason of the distances involved and the position of a car driver within a vehicle heading south west along Baranbah Street, that the train would have been readily visible to Mrs Jeffries. I cannot conclude, as Vero submitted, that she saw (or heard) the train and decided to do a U-turn for the purpose of returning to the level crossing and putting her car on the tracks.

After the U-turn, assuming she was travelling at 40km/h the whole way to the crossing, as Mr Shields' notes (which having regard to Mr Tanti's evidence of lower speeds is likely to result in a shorter time than the journey actually took), Mrs Jeffries would take between 54 and 72 seconds to travel between 600m and 800m to the crossing from Mr Shields' house.

During that time, if travelling at 140km/h, the train would travel between 2.1km and 2.8km. If the train speed was lower, say 135km/h, then the trail would have been between 2.025km and 2.07km. I do not accept that it is possible for Mrs Jeffries to have seen the train before executing her U-turn further to the west of Mr Shields' house when it was at least 2.7km and probably further from the crossing. This analysis provides support for my conclusion that there was no connection between the U-turn executed by Mrs Jeffries and the presence of the train on the train line.

As she passed Mr Shield's house, Mrs Jeffries was driving at her usual speed of around 40 km/h. She waved to him. She rounded the right hand bend in Baranbah Road, travelling somewhere in the order of 18 to 19 km/h. She approached the crossing by which time her car was slowing down.

She was seen approaching the crossing by Mr Houlihan and Mr Curtis. She was travelling reasonably slowly. The vehicle came to a stop at the crossing. At this point, the train whistle was sounded for the first time. On the probabilities, because her windows were wound up and the radio was being played loudly, and because the sound insulation in the Toyota was effective, Mrs Jeffries would not have heard the whistle.

However, she brought her car to a stop, as she was obliged to do, at the level crossing. At that point, the car was in a position where it was thought by Mr Houlihan and Mr Curtis, albeit from a distance, that it might be foul of the line. There was no certainty that the car was actually foul of the line, but that is how it appeared to them.

I accept the evidence of Mr Nairn that if the vehicle was in gear, as it was, and it was idling, as it was, unless the brakes were activated by pressing the brake pedal, the car would move forward slowly, or creep forward. This is likely to have been what both Mr Houlihan and Mrs Curtis saw.

The remaining question is whether, when the car reached the middle of the railway tracks, it came to a complete stop for eight seconds, or at least an identified discrete period of time, or whether it was still moving, albeit slowly, when the train arrived.

The evidence is clear that at the moment of collision, the brakes were not on, and the brake pedal was not depressed. At that point in time the car must have been moving, albeit slowly. No one gives evidence that the car was seen to have moved onto the tracks, stopped for an identified period of time and then started to move again. If that is what happened, it would have been obvious to Mr Houlihan and Mr Curtis (if he was maintaining this view, and before he turned away). But Mr Houlihan's observations were that up until the moment of the collision, the car did not stop at all but rather that it kept moving.

It is equally clear that the accelerator was not activated at any time after the car came to a stop before it entered onto the tracks in front of the train. The car was not purposely driven by use of the accelerator onto the middle of the railway tracks, nor in the moment before the collision was the car being accelerated off the line, as if the driver had suddenly become aware of the impending arrival of the train.

In my opinion, the probabilities accord with the evidence of Mr Houlihan who said the car was at no time stopped for an identified or discrete period in the centre of the railway tracks, but that it was moving forward slowly up to the time the train arrived. To the extent that Mr Curtis' account differs because he says that he saw the car come to a stop in the middle of the track, I prefer the evidence of Mr Houlihan which accords most closely with the other evidence, and the probability of what occurred.

This conclusion is consistent with the evidence of Mr Tanti because at no time did the care move forward at greater than 2km/h after its initial stop at the crossing.

Mrs Jeffries and her state of mental health

Having regard to the nature of the issues, and in particular the submission of Vero that I should be satisfied that Mrs Jeffries committed suicide, it is appropriate to examine the evidence about the state of Mrs Jeffries' mental health at the time of the collision.

The information about Mrs Jeffries comes principally from those who knew her, including her son Rodney, a neighbour and friend, Mrs Shirley Allaway, and Mr Donald Nott. As well, Dr Moroney, who was her general practitioner for over 30 years prior to her death, gave evidence about Mrs Jeffries.

This description of her life and background is drawn from that evidence, much of which was undisputed.

At the time of her death, Mr Jeffries was 54 years old. There was little in the evidence about her early upbringing, but her parents were still alive at the time of the accident. They were not called to give evidence, nor were statements tendered from them.

Mrs Jeffries was married and had two children. Her son, Rodney, was born in 1966 and her daughter, Tanya, was born in 1968. She divorced her husband, who was the father of her two children, in about 1994. At that time, she lived in Narrabri with her family. After her divorce, she purchased a house in, and moved to, Baan Baa. Her house was unencumbered by any borrowings at any stage.

At the time she moved to Baan Baa, she told her son Rodney that she wanted to move closer to her parents to look after them. She was diligent about doing this and saw them at least once a day.

From about 1971, Mrs Jeffries attended at the Bridge Medical Centre in Narrabri where she was seen by Dr Moroney, who was her general practitioner. An extensive report is in evidence from Dr Moroney listing each occasion when he saw Mrs Jeffrey, and made notes, throughout the period up to her death.

It is unnecessary to record in this judgment all of the details of the consultations with Dr Moroney. They are almost entirely irrelevant.

The first occasion upon which he makes any reference at all to her mental state, is on 19 April 1977, when he prescribed two drugs relating to her anxiety and stress which seems to be related to her marital relationship. The children were aged about 11 and 9 at that stage.

There are a few, but not many, subsequent references, contained in the notes to a similar complaint of stress and anxiety. These are largely in the period up until July 1984. In late 1989, Mrs Jeffries again complained to Dr Moroney of increased stress which was associated with difficulties in her marital relationship.

The first mention of depression (as opposed to anxiety or stress) occurs in a note of 2 September 1996, when Dr Moroney records that she presented "... very depressed". He did not prescribe any medication for this symptom.

In a note of 11 September 1999, which is the next mention of depression, Dr Moroney records:

"She had been depressed so I started her on Zoloft one of the later, more useful antidepressants."

There were three further notations of depression. The first on 26 April 2001, when Dr Moroney noted that she was still depressed, and that he continued the Zoloft. The next on 6 May 2001, when there was obvious depression. The final mention was on 8 October 2003, when Dr Moroney noted that Mrs Jeffries was still depressed but had refused treatment for that condition. It is unclear from the notes when she ceased being prescribed, and taking, Zoloft or other like medication.

Dr Moroney's report contains this statement and commentary toward the end of it:

"I have described my various consultations with Mrs Jeffries but you will notice that two words stand out from nearly the first consultation. They are stress and depression. The original stress caused a few problems ... Also the diagnosis of depression followed later after years of stress. This means she had acute followed by chronic stress followed by depression. She was not happy [with] my using the word depression and even less happy with my prescribing antidepressants which is why I prescribed so little of them. ...

Towards the end she would not let me use the word depression or write it in the notes as she was paranoid about my girls or anybody finding out the true problem."

It will be necessary to return to Dr Moroney's opinion about the cause of Mrs Jeffries' death, in due course. I note that generally speaking, so far as the notes record, Dr Moroney saw Mrs Jeffries a little less frequently than once every two months, in the five years before the collision. Most of these consultations occurred in 2001 in association with a number of identified physical symptoms. He clearly did not see Mrs Jeffries as often, or for as long a period, as did Mr Rodney Jeffries or Mrs Allaway.

Rodney Jeffries described his mother as a person who was generally "... a happy and independent soul", who took great pride in her appearance up to the time of her death. He said she was very particular about her clothing and was always very presentable and well dressed. He said that she was very proud of her house, its yard and garden which she kept in a good state. She regularly mowed the lawn and maintained a flower garden. She kept the house to a high standard of cleanliness by her regular housework and the house was generally very tidy.

Mrs Jeffries had three grandchildren at the time of her death and her daughter Tanya, was pregnant with her fourth grandchild. She greatly enjoyed her grandchildren, and kept photographs of them which she shared with friends and visitors.

During the years 2000 to 2004, Mrs Jeffries worked on average two days a week, doing housekeeping and home maintenance duties on a property at Wee Waa, which is about 80 km from Baan Baa.

It was apparent in the years leading up to 2004, and Mrs Jeffries told her son Rodney, that she was suffering from some incontinence problems. She was booked in for surgery at the Inverell Hospital on 5 May 2004. In a conversation with her son on the day before her death, Mrs Jeffries did not appear to be overly concerned about the operation.

In the five years leading up to her death, Mr Rodney Jeffries saw his mother for hours at a time and on regular occasions. It was his evidence that he did not observe any change in her outgoing, contented and happy personality or demeanour. He expressed this view about his mother:

"At no time during the 38 years I knew my mother did she ever mention or suggest self harm. Such behaviour would be totally inconsistent with her personality and her enthusiasm for life and particularly her enthusiasm for watching her family, including her young grandchildren, grow up."

Mr Rodney Jeffries was an impressive witness, with a good recall of events. He said that his mother dropped in to see him at his place of work in Narrabri between 3pm and 4pm on the afternoon of her death. The visit lasted between 15 and 20 minutes. He expressed the view that his mother was her "usual happy, bubbly and talkative self".

It was Mr Jeffries' understanding that his mother was going to return home to Baan Baa after she left her meeting with him. He said that it was her almost daily practice to visit her parents, who lived between 1.5 and 2km along the Barranbah Road from the level crossing.

Mr Jeffries was completely unaware that his mother suffered from any depression, nor did he realise there was any issue with her mental health. He said that whenever he spoke with her, she did not show any signs of depression.

He described his mother as a proud, very outgoing and very popular woman in the community.

It is fair to say that the picture one obtains from Mr Rodney Jeffries was not one of a woman intending to take her own life, let alone within no more than a couple of hours from when he last saw her. The impression was that she was a happy woman with much to live for and look forward to.

Shirley Allaway was a close friend of Mrs Jeffries. She lived in a house a few doors along from where Mrs Jeffries lived in Baan Baa and saw her, if not every day, then almost every day.

A measure of their friendship was that in February 2004, Mrs Allaway went and stayed with Mrs Jeffries at the Tamworth Base Hospital when Mrs Jeffries needed to be admitted for surgery. She was again intending to accompany Mrs Jeffries on her admission to Inverell Hospital, scheduled a day after the collision.

She gave this description of her friend:

"Phyllis was a happy go lucky person. If something were worrying her she would make a joke about it. Phyllis had no more worries than anyone else. ...

Phyllis would tell me things that she would not tell other people we were that close. Phyllis had no real money worries, no more than anyone else. I think she had money invested. ..."

Mrs Allaway described the relationship between Mrs Jeffries and Mr Nott, which had been terminated by Mr Nott in or around Christmas 2003. Mrs Jeffries had confided to Mrs Allaway that if Mr Nott were to come back, then she would accept him and resume their relationship. Of the relationship between Mrs Jeffries and Mr Nott, Mrs Allaway said this:

"However this relationship with Noddy [Mr Nott] was not a major factor with her. It was not enough that she would have killed herself; she was always out and about perving on other blokes. She was a happy go lucky person."

On 4 May 2004, Mrs Allaway met up with Mrs Jeffries in Narrabri. It is unclear how it was that they came to meet each other, in the sense of whether it was planned or not, but they certainly spent time together in Narrabri. They discussed the upcoming operation which Mrs Jeffries was to have at Inverell Hospital. Mrs Allaway had the impression that Mrs Jeffries was not concerned about the operation. They did some shopping.

Mrs Jeffries drove Mrs Allaway to a doctor's appointment and then sat in the waiting room whilst Mrs Allaway was being attended to. They went for a coffee in west Narrabri and then made their way home, albeit in separate vehicles.

When they arrived at Baan Baa, Mrs Jeffries accompanied Mrs Allaway into her house. They had a conversation and then walked out to Mrs Jeffries' car. They continued to converse. Mrs Allaway indicated to Mrs Jeffries that, subject to some illness with her parents preventing her, she would accompany Mrs Jeffries to Inverell Hospital and stay with her during her operation. Mrs Jeffries left and waved to Mrs Allaway as she drove off.

Mrs Allaway described Mrs Jeffries at the time of their final parting in these words, which I accept as an accurate picture of Mrs Jeffries as she drove off to visit her parents:

"Mrs Jeffries' manner appeared to me to be no different than to what I had observed earlier in the afternoon. She appeared to me to be relaxed and unconcerned by anything ... she appeared to me to have no concerns about her procedure the next day."

Mrs Allaway was told by Mrs Jeffries that she was going to visit her parents. Since Mrs Jeffries had been working in Wee Waa that day, and was accustomed to visiting her parents at least once every day when she was working, and if not working, twice daily, Mrs Allaway was confident that Mrs Jeffries was going to visit her parents. It was a short time later that the collision occurred.

In her statement, Mrs Allaway described her friend Mrs Jeffries, in this way:

"When I saw Phyllis on the day of the accident, she was in a good mood and there were no indications what-so-ever that she would commit suicide. Phyllis would not have taken her own life, she was in her good normal spirits that day. Nor would she [have] hurt any other person."

When she gave evidence, she was specifically asked whether she had observed Mrs Jeffries to be depressed at all, or whether her close relationship with Mrs Jeffries had given her any inkling that Mrs Jeffries might be depressed. Mrs Allaway said that she had never, on any occasion, seen Mrs Jeffries displaying any signs of depression.

When she was asked whether she thought that it was unlikely that Mrs Jeffries would have discussed matters of depression with her, she rejected that and said that she thought that if Mrs Jeffries were depressed "... she would have told me because we were pretty close".

I thought that Mrs Allaway was an impressive witness. I accept her evidence. Clearly, in the five years, or perhaps more, preceding the collision, she saw, and spent more time with, Mrs Jeffries than anyone else.

Other non-expert evidence is also relevant to the possible state of mind of Mrs Jeffries.

About four to five months before the collision, Mrs Jeffries spoke with Ms Caroline King. According to Ms King's unchallenged statement, Mrs Jeffries was deeply unhappy that her relationship with Mr Nott had come to an end. Ms King said that Mrs Jeffries had told her that she felt like "... ending it all..." and that she was "... unhappy with life ...". It is not clear from Ms King's statement how well she knew Mrs Jeffries, nor how frequently she saw or spoke with her. It is not clear if Ms King spoke to Mrs Jeffries between this conversation and the collision. I am satisfied from the evidence of Mr Rodney Jeffries and Mrs Allaway that Mrs Jeffries was not "unhappy with life" in May 2004.

About six months before the collision, Mrs Jeffries spoke with Mr Robert Shields, a grazier with whom she was friendly. She told him that she was "... a bit depressed ..." and that she had thought that she might sell and leave Baan Baa. Having regard to the proximity of this conversation to the ending of her relationship with Mr Nott, I would infer that these expressions were reflective of the breakdown in that relationship.

However, Mr Shields went on to say that Mrs Jeffries had remarked to him that she "... often feel[s] like driving straight under a semi and ending my life". After a discussion about harm to other blameless people if such an event occurred, Mrs Jeffries said that "... possibly a train would be better".

Mr Shields recorded that in the few months after that conversation, Mrs Jeffries had told him that she was still feeling much the same and that he thought she felt life was not worth living. Again, these expressions do not appear to have been reflected in anything said by Mrs Jeffries on 4 May 2004.

After the collision, the contents of Mrs Jeffries' handbag were examined by Ms Tanya Jeffries. According to Detective Senior Constable Sims in an envelope in the handbag, there was a handwritten letter from Mrs Jeffries to Mr Nott. It seems to have been written on 28 April 2004, but further material seems to have been added after that date.

The letter, which was in evidence, did not contain any threat of, or suggestion that, Mrs Jeffries was intending to commit suicide. It could not be regarded, and was not so regarded by the three expert psychiatrists, as a suicide note. It expressed no suicidal ideation or intention. It professed Mrs Jeffries' care for, and affection for, Mr Nott, and her desire to resume their relationship. It invited Mr Nott to make contact with her, saying;

"If you would like to talk to me, it will have to be this Wed (to-day) or Friday week Nite as I will be in hospital this Friday till Monday."

Dr Skinner, an expert psychiatrist concluded this was not "... a particularly positive letter". Dr Phillips, an expert psychiatrist, saw it differently. All of the expert psychiatrists were not persuaded that the letter itself evinced any suicidal intentions.

Ms Helen Starr also saw Mrs Jeffries for a period of up to half an hour on the afternoon of the collision. Her evidence is discussed in some detail later in this judgment.

Against the background of these statements, and the evidence of and about Mrs Jeffries in the time prior to the collision, it is necessary to consider the evidence of the expert medical practitioners. Dr Moroney gave evidence and expressed the view that he thought Mrs Jeffries committed suicide. The three expert psychiatrists, Dr Phillips, Dr Klug and Dr Skinner, expressed conflicting views. Dr Klug and Dr Skinner thought on the basis of the factual material, which they had been given, that Mrs Jeffries did commit suicide. Dr Phillips thought that she did not.

It will be necessary to examine each of these opinions. It is also necessary to comment that each of these four medical experts had a different factual basis for the expression of their views. The factual bases, at least initially, were not consistent. As well, each of the expert psychiatrists engaged in the interpretation of the facts given to them, and placed a different emphasis on various facts.

It is convenient to commence with Dr Moroney. Although not as expert in the matters of mental health as the psychiatrists, his opinion nevertheless warrants careful consideration.

Dr Moroney gave evidence before the Coroner when the Inquest was held into Mrs Jeffries' death. He had about 25 years' experience in Narrabri performing post mortems and giving evidence to the Coroner.

He said in his evidence before this Court that in 2009 at the Inquest, he expressed the view that Mrs Jeffries had committed suicide, and expressed it with a level of confidence between 90 and 95 per cent.

He said that he based that opinion, at the time he expressed it, upon a number of features of Mrs Jeffries' life of which he was aware, namely:

(a) the prospect that Mrs Jeffries' job might come to an end and that she would cease to obtain a significant part of her income;

(b) persistent contact by her ex-husband with her;

(d) her relationship with Mr Donald Nott, which had come to an end a fairly short time before the collision;

(e) her concerns about her living arrangements;

(f) her concerns about her personal health and the upcoming operation at Inverell Hospital;

(g) her concerns about her financial incapacity to replace her aging motor vehicle; and

(h) a breakdown of her previously cordial relationship with her former mother-in-law during the six months prior to the collision.

Dr Moroney confirmed that Mrs Jeffries had ceased to take any prescription drugs for her mood or her depressive state well before the collision because she had expressed a view that she did not wish to take them anymore. The precise period is in dispute between the parties, but was, at the least, seven months before the collision.

Dr Moroney was cross-examined about the accuracy of his report. It was a comprehensive report and Dr Moroney affirmed its accuracy in all respects in his evidence-in-chief. In cross-examination, it became apparent that the list of drugs contained in the report may not be a complete list. Dr Moroney said that there may have been occasions where he did not make a note of any drugs associated with Mrs Jeffries' mental health, because she had asked him not to. He could not point to any particular occasion where this had occurred, but sought, in effect, to reserve the possibility that it had occurred.

As well, he said that he would not ordinarily note in that "comprehensive" list, drugs prescribed by specialists or else occasions when he gave a repeat prescription of drugs which he had previously prescribed without having a formal consultation.

I accept that Dr Moroney wished to be careful answering the questions in cross-examination, but having regard to the length and detail of his report, and the fact that he did note the prescription of drugs directed to alleviating Mrs Jeffries' mental health, I could not be satisfied that he prescribed any other drugs for a lengthy period, or else on many occasions, which he had not noted. I accept that it is possible that on one or two occasions at some stage over the long history of his caring for Mrs Jeffries, that he did not record the prescription of a drug. However, I do not regard these occasions as being of any substance in the determination of the state of Mrs Jeffries' mental health at the time of, or in the months leading up to, the collision.

This approach is confirmed by the fact that it was accepted by all parties, and by Dr Moroney, that Mrs Jeffries had not consumed any prescription medication for her mental health for a period of at least seven months prior to the collision. This period reflects the time between a consultation on 8 October 2003 and the collision. The last date upon which there is recorded the prescription of a drug for her depression is 26 April 2001. The evidence is silent as to whether she consumed any drug after that time for her mental health.

It was also accepted by the parties, the expert psychiatrists and Dr Moroney, that the effects of such medication as she had been taking would have ceased within a period of three to four weeks after she ceased taking the medication.

It also appears from Dr Moroney's notes that he did not refer Mrs Jeffries to any psychologist or specialist psychiatrist at any time after the late 1980's. He did not give evidence that at any time in the ten years (or longer) before the collision, he had advised Mrs Jeffries to consult such experts. I infer that he did not regard Mrs Jeffries' mental health as being sufficiently affected to warrant such a referral.

As a consequence, at the time of the collision, and in the days leading up to it, Mrs Jeffries' state of mental health has to be assessed upon the basis that it was not alleviated in any way by prescription medication and that during his consultations in the period since April 2001, Dr Moroney had not specifically prescribed any such medication for Mrs Jeffries.

In formulating his opinion, Dr Moroney did not regard the statements of Mrs Allaway and Mr Rodney Jeffries, which he had read prior to giving evidence, as being of enough importance for him to take into account. He disregarded their statements when formulating his opinion.

A significant factual issue emerged in cross-examination about one of the facts underlying Dr Moroney's opinion. In his report, Dr Moroney records the following note with respect to events of which he had been informed. His report records this:

"On 24.5.04 I was told by my Practice Manager [that] Mrs Jeffries had been to the surgery on 4.5.04 at about 4pm hoping to see me but left without making an appointment. I normally return to the surgery at about 4pm so I must have missed her. The Practice Manager told me she was in a highly agitated state and did not wait for me, and she died about 2 hours later. This information was conveyed to my Practice Manager Carol Connole by one of my receptionists Helen Starr who has since left Narrabri."

In cross-examination, Dr Moroney noted that the information conveyed to him by his practice manager, about Mrs Jeffries coming to see him on 4 May 2004, was communicated to him in May 2008, not 2004 as his typed report contains. As this was checked and confirmed with him during the cross-examination, I conclude that the date written in his report was an error, which should have read "24.5.08".

Dr Moroney agreed in cross-examination that he had placed this information into his report because he regarded it as very significant and critical. I have no doubt that he did so because it was important for the purpose of supporting his opinion about whether Mrs Jeffries committed suicide. Dr Moroney agreed that the words of central importance in the note were that Mrs Jeffries' presentation had been described as being in "... a highly agitated state ..." and that she didn't wait for the doctor to attend within what must have been a relatively short period of time. This was in the context, as he understood it, that Mrs Jeffries had sought to see him in consultation.

Dr Moroney said that he concluded from the description that he had been given, that Mrs Jeffries was in a period of turmoil, seeking his help and "... was deciding what she was going to do". The end point of this decision making exercise was, as he saw it, her decision to commit suicide.

It is necessary to examine the factual evidence about this incident apart from the material recorded in his notes. After all, Dr Moroney received the information in a second-hand way.

The factual evidence of what occurred at the Medical Centre, consisted of the unchallenged statement of Helen Starr, who was working as a receptionist at the medical centre at which Dr Moroney practised. It was she to whom Mrs Jeffries spoke on the afternoon of the collision. Her statement contains the following account of what happened:

"8. I was doing the banking at the front desk when Phyllis arrived and I recall looking up and seeing her standing there. She was leaning over the counter.

9. Phyllis was well dressed and groomed on the day, and I recall complimenting her on how well she was dressed and how nice she looked.

10. She was very chatty with me on the day which was a bit unusual, because, whilst I knew her, she generally spoke with Carol rather than me when she came into the Medical Centre. Carol was not there on the day as she was on leave.

11. Phyllis seemed bright on the day but she lingered around longer than usual and it seemed to me that she wanted someone to talk to. I thought it was [a] bit unusual that she talked to me for as long as she did because I did not really know Phyllis on a personal level ...

12. Phyllis left after chatting for about half an hour and I recall thinking that I should ask her out for a cup of coffee one day ... and I thought she may enjoy a chat over a cup of coffee."

It is plain from the statement of Helen Starr that the second-hand description which Dr Moroney received from Carole Connole some four years after the incident, and which he recorded in his notes, and relied upon, was not supported by the primary evidence of what had in fact happened. There is no evidence that Mrs Jeffries was in a highly agitated state, nor that she attended at the Medical Centre asking to see the doctor. The evidence does not support the inference that when she was told that Dr Moroney was not able to see her at that time, because he had not arrived, she left, rather than waiting for the consultation which she wanted. There is no support for the conclusion that she was in turmoil.

Importantly, Dr Moroney's note suggests that Mrs Jeffries had been to the surgery in order to consult with him. No doubt, it was that wish to consult him, and the fact that she was in an agitated state and then left without consulting him, which caused Dr Moroney to place a good deal of weight on this event when considering whether or not Mrs Jeffries committed suicide.

In fact, the statement of Helen Starr does not suggest that Mrs Jeffries sought an appointment with Dr Moroney. On the contrary, it emerges from Ms Starr's statement, that Mrs Jeffries was friendly with the practice manager, Ms Carol Connole, and that from time to time Mrs Jeffries called in to the surgery to have a chat with Ms Connole. What in fact Ms Starr said was this:

"5. Phyllis came into the surgery about once a month, either for an appointment with Dr Moroney, to pick up some prescription or for [a] chat with Carol Connole, who was a friend of hers. ...

(h) She left home to visit her parents. Whilst on that journey, for an unidentified reason, which was not connected to her seeing or hearing the train, she did a U-turn and drove back towards her house.

(i) Thereafter, the manner of her driving up until she stopped near the Stop sign at the crossing, including her speed and braking, was unremarkable. It accorded with her usual habit of driving in Baan Baa. She waved to Mr Shields as one would normally expect.

(j) The manner in which her car entered onto the tracks and came to the middle of them where the collision occurred, for the reasons earlier discussed, was a low speed continuous one, during which the car did not stop on the tracks for a discrete identified period.

(k) The car's movement is explained by the fact that it was in first gear, and creeping forward at less than 2km/h because the foot brake was not activated.

(l) There are a number of hypotheses about Mrs Jeffries' behaviour in the car which are consistent with misadventure, inattention or distraction. The facts do not on the probabilities, support a hypothesis of suicide, although the possibility of it cannot be excluded.

I have come to the conclusion that Mrs Jeffries did not commit, and was not engaged in the act of committing, suicide at the time of the collision between her car and the train. The reason for the collision was that she was acting inadvertently when she allowed her car to move slowly onto the tracks. She did not place her car there deliberately.

The insurance issues

The claim by RailCorp is brought against Vero Insurance Ltd by reason of s 51 of the Insurance Contracts Act 1984 (Cth).

That section permits a third party, such as RailCorp, to recover from an insurer:

"... an amount equal to the insurer's liability under the contract in respect of the insured's liability in damages."

The preconditions to recovery are:

(a) that there is an insured under a contract of liability insurance who is liable in damages to the third party;

(b) the insured has died; and

Here, there is no dispute that Mrs Jeffries was insured under a contract of liability insurance. Equally, there is no real dispute that Mrs Jeffries, personally, is liable in damages to RailCorp. Mrs Jeffries' liability directly to RailCorp is not affected by the issue of whether the collision was caused accidentally, or on her part, intentionally. There is no dispute that Mrs Jeffries is dead.

The central dispute is whether the contract of liability insurance "provides insurance cover in respect of the liability": s 51(1)(c) of the Insurance Contracts Act.

The policy is entitled "Secure Motor Plus Insurance" ("the Policy"). In the insurance parlance, the Policy is a third party property damage policy.

The Policy document contains two parts, namely a Product Disclosure statement and the Policy wording. It is appropriate to concentrate on the Policy wording for the purpose of determining whether the Policy provides insurance cover in respect of the liability.

The contract of insurance is defined in the Policy wording in this way:

"Our contract with you

The contract

In the contract between you and us:

▼ we will agree to provide you with the insurance you select and which is shown in your schedule, and

▼ in return, you agree to pay us:

▼ your premium,

▼ GST, and

▼ any other relevant government charges.

These amounts add up to the amount payable, which is shown in your schedule.

You must pay this total amount:

▼ when you first take out your policy, and

▼ each year when you accept any offer we may make to renew your policy with us. This is because a renewal is a new contract with us.

Your insurance only starts when you pay this total amount, unless we agree you can pay by instalments. If you have not paid, you are not insured."

The Policy provides that the terms and conditions of the insurance contract as are set out in the Policy and also the Schedule. The Policy outlines the procedure to be followed for an insured when making a claim. It then contains a section highlighting five broad circumstances in which the insurer may refuse to pay a claim. It is necessary only to record the relevant reasons why the insurer may refuse to pay a claim. These relevantly include:

"■ your vehicle is being used for an unlawful purpose by you or by someone with your permission

■ your vehicle is being used to conduct an illegal activity such as, but not limited to, a ram raid or carrying stolen drugs or goods"

Part 4 of the section on the capacity of Vero to refuse to pay a claim is in these terms:

"Part 4 - loss or damage

We do not insure you for:

...

■ Any loss, damage or legal liability intentionally caused by you or a person acting with your consent".

Section 1 of the Policy defines the coverage - it includes the following:

"Third party property damage, cover and bodily injury

This part of the policy is designed to help protect you against legal liability for:

■ loss or damage to other people's property, and

■ the death of or bodily injury to other people."

This section defines legal liability in the following terms:

"Legal liability means that an Australian court finds, or we accept that, as the result of an accident, a person is legally responsible to pay compensation for:

■ loss or damage to property owned or controlled by someone else, or

■ the death of or bodily injury to another person,

and the person responsible is:

■ you ... "

The Policy goes on to record the following:

"We will only pay a claim for legal liability if the accident that gives rise to legal liability is one that:

■ occurs during the period of insurance,

■ occurs in Australia, and

■ was not expected or intended to give rise to legal liability."

At the back of the policy is the definition section. There is no definition for the word "accident", "unlawful purpose" or "illegal activity". Nor is there any definition of the phrase "intentionally caused".

The interpretation of these words and phrases falls to be addressed by ordinary principles of contractual interpretation.

The principles of construction applicable to policies of insurance

In McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 at 589, in [22] Gleeson CJ said:

"A policy of insurance, even one required by statute, is a commercial contract and should be given a businesslike interpretation. Interpreting a commercial document requires attention to the language used by the parties, the commercial circumstances which the document addresses, and the objects which it is intended to secure."

(cited with approval by Gleeson CJ, McHugh, Gummow and Kirby JJ in Wilkie v Gordian Runoff Limited [2005] HCA 17; 221 CLR 522 at [15]).

The principles to be applied in the interpretation of a policy of insurance are thus identical to the principles to be applied in the interpretation of any commercial document.

In approaching the construction of a policy of insurance (and any commercial document), the Court must ascertain the meaning which the document would convey to a reasonable person where that reasonable person has all of the background knowledge available to the contracting parties. The Court must also have regard to the purpose and object of the transaction: Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; 210 CLR 181 at [11] per Gleeson CJ, Gummow and Hayne JJ (with whom Kirby J at [62] and Callinan J at [89] agreed generally on this point); Pacific Carriers Limited v BNP Paribas [2004] HCA 35; 218 CLR 451 at [22] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ; Phoenix Commercial Enterprises Pty Limited v City of Canada Bay Council [2010] NSWCA 64 at [148]-[151] per Campbell JA; Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 at [34]-[35] per McColl JA.

Issues

The first issue to be determined in accordance with s 51(1)(c) of the Insurance Contracts Act, before a claim under s 51 can succeed, is whether the contract provides insurance cover in respect of the liability. It is necessary for RailCorp as plaintiff to prove that the contract does provide such insurance cover, otherwise it does not have the right, as a third party, to recover against Vero the insurer.

The phrase "the liability" used in s 51(1)(c) of the Insurance Contracts Act, is referrable to the words used in s 51(1)(a), namely, that the insured "... is liable in damages to [a] third party".

The enquiry then is whether the insurance policy provides cover in respect of the liability.

As I have earlier pointed out, Mrs Jeffries (the insured) was liable in damages to RailCorp for the collision because she was the cause of it. She was the cause of it because her obligation as a car driver was to give way to the train at the level crossing. Whether or not the failure to give way to the train, and allow it to pass through the crossing undamaged, was as a consequence of her inadvertence or negligence, or else a deliberate act on her part, does not affect her liability in damages.

The next question is whether the contract provides cover in respect of her liability.

It seems to me that the answer to such a question involves an analysis, first of whether the contract provides insurance cover, and second, if it does, whether any of the exclusions apply so as to exclude the cover.

The cover provided by the policy is for legal liability for loss or damage to other people's property. It is necessary to concentrate on what the policy defines as "legal liability".

In order for legal liability to arise, an Australian court must find that Mrs Jeffries is legally responsible to pay compensation for loss or damage to property owned or controlled by someone else, as a result of an accident.

Accordingly, the plaintiff, RailCorp, has the onus of establishing that the claim which it makes for damages (compensation) to recompense it for its loss and damage to property, is as a result of an accident. This concentrates attention on what is meant by the term "accident" in the Policy. As I have earlier pointed out, the term "accident" is not defined in the Policy.

It is necessary to turn to the common law, and previously decided authorities to determine what "accident" means.

In Australian Casualty Co Ltd v Federico (1986) 160 CLR 513, the High Court of Australia considered the proper interpretation of a disability insurance policy where the relevant phrase was "bodily injury caused by an accident". Gibbs CJ said at 521:

"The words 'an accident' can by themselves be applied either to an event which happens fortuitously or to the consequences of such an event, but in the context of the policy in the present case they describe the cause of the bodily injury ... Further, the words of the policy do not require that the cause should be one which it is possible to identify. If it can be inferred that some accident - some unintended and unforeseen (and perhaps unforeseeable) happening - must have occurred to cause the injury, the insured will be entitled to recover under the policy." (Emphasis added)

At 527, Wilson, Deane and Dawson JJ said:

"As a matter of ordinary language in this country, an 'accident' (from the Latin accidens) means very much what the etymologist would expect. It is something which happens without intention or design. When used with reference to something which causes injury, it means an unexpected and unintended mishap." (Emphasis added)

The plurality judgment approved the definition of the ordinary and natural meaning of the word "accident" used by Lord Macnaghten in Fenton v Thorley & Co Ltd [1903] AC 443 at 448, where he said that an accident was

"... an unlooked-for mishap or an untoward event which is not expected or designed."

These authorities are apt to be applied in considering the proper interpretation of the word "accident" in this Policy.

Here, as I have concluded, the collision occurred due to inadvertence on the part of Mrs Jeffries and her failure to comply with the Australian Road Rules which obliged her to give way to trains at the level crossing. I have found that she did not intentionally cause the collision.

In those circumstances, it is clear that what occurred was as a matter of ordinary language and as the authorities to which I have referred suggest, an accident. What happened occurred without intentional design on the part of Mrs Jeffries and was an unexpected and unintended mishap. The contrary was not argued by Vero, in the event that I came to the conclusion at which I have arrived.

The real debate between the parties centred upon whether the policy would nonetheless respond if Mrs Jeffries placed her car on the tracks as an intentional act intending that she would commit suicide.

Difficult questions of onus and policy interpretation arise if that was the fact. Since it is unnecessary for me to reach a conclusion on these matters, having regard to their difficulty it is preferable that I do not express any view on the matter, and I do not.

Exceptions

There are two exceptions contained within the policy. The first is that the vehicle is being used for an unlawful purpose, and the second is that the vehicle is being used to conduct an illegal activity.

Vero submitted that because I ought find that Mrs Jeffries intentionally placed her vehicle across the railway lines with the intent that a collision should occur between the vehicle and the oncoming train, she was guilty of an offence contrary to s 212 of the Crimes Act 1900. It also submitted that the circumstances gave rise to an offence against s 213 of the Crimes Act. Both of these sections relate to specific conduct in connection with a railway. Section 212 encompasses actions which are unlawful and may also amount to a negligent omission. However, consistently with authorities in the criminal law, the negligence required to constitute a negligent omission for the purpose of an offence under s 212 of the Crimes Act, is negligence to the criminal standard.

The inadvertence which I have found in these circumstances, or differently expressed, the negligence of Mrs Jeffries as a car driver, does not even approach, let alone reach, the standard of criminality necessary to constitute an offence.

In light of my findings as to what occurred, there is no basis for a conclusion that either of the exceptions relied upon by Vero have been made out.

I conclude that the Policy responds to the claim made and that Vero is obliged to indemnify RailCorp. This conclusion does not mean that all of the amounts claimed by the plaintiffs, RailCorp and CRIA, are recoverable by them. The extent to which Vero is liable in respect of all amounts will depend upon the specific provisions of the Policy, as to what damage is covered.

It is convenient to note that although Vero pleaded that the breach by Mrs Jeffries of the Australian Road Rules, entitled it to decline coverage, in its final submissions Vero did not press this argument. It sought only to rely upon breaches of the Crimes Act 1900 and then, in circumstances where Mrs Jeffries' conduct was intentional. As this argument was abandoned, it is unnecessary to decide it. However, speaking generally, mere negligence of a kind which is indicated by a breach of the Australian Road Rules, and which exists on the facts of this case, would not ordinarily fall to be excluded under a policy such as this. It is unsurprising that Vero abandoned this argument.

Contributory Negligence

In its defence, Vero pleaded that if the policy of insurance did respond, and obliged it to indemnify Mrs Jeffries, and hence the plaintiffs, it pleaded that "... the accident and damage resulting therefrom were contributed to by the actions and omissions of the plaintiffs, its servants and agents".

Relevantly, the particulars of that, which were ultimately pressed, were that:

"(i) Travelling at an excessive speed;

(ii) Travelling at a speed which would not allow the train to be brought to a halt in the time between the insured vehicle being first observed by the driver of the train and the time of the collision;"

This pleading was colloquially referred to by counsel for Vero as "contributory negligence". In light of the fact that the claim made by the plaintiffs was one based on the provisions of s 51 of the Insurance Contracts Act and required the plaintiffs to establish that there was legal liability on the part of Mrs Jeffries and an obligation on the part of Vero to insure Mrs Jeffries with respect to that legal liability, it may be doubted that this pleading properly raises a question of contributory negligence.

However, it may not be necessary to determine that issue if, as a matter of fact on the evidence in the case, Vero has not established any contributing fault on the part of the plaintiffs.

The argument put by Vero in its final submissions, was that if Vero was found liable to meet the damage occasioned by Mrs Jeffries, it ought be liable to meet only that proportion of the damage or loss attributable to Mrs Jeffries' actions, and not any part of that loss or damage attributable to the actions of RailCorp.

It submitted that the bulk of the damage was caused by the derailment that occurred approximately 420m beyond the collision point. It submitted that because the train was travelling at or about the maximum permitted speed of 140km/h, as opposed to a much lesser speed, the derailment would not have occurred and much of the damage would have been avoided.

Mr Keramidas in his report of 6 July 2010, expressed the view that if instead of travelling at the speed at which it was, the train was travelling at 80km/h, and if the train driver made the same observations which he did in fact make at the same locations where he in fact made them, and acted as he did in fact act, then the train would have been brought to a halt without it derailing, although a collision would still have occurred.

The submission therefore was that the permitted speed of 140km/h through this crossing, in the circumstances of the location of the crossing in the township of Baan Baa, the fact that it had no active crossing controls such as barriers, flashing lights or the ringing of bells, was a negligently fixed maximum speed limit, and that the maximum speed limit through this crossing should have been reduced by RailCorp to no more than 80km/h.

In making that submission, Vero pointed to the fact that the evidence disclosed in respect of some other crossings in the State of New South Wales, where the level crossings were in settled areas, trains were required to pass through the crossings at a speed as low as 25km/h. As well, Vero submitted that limiting the speed through this crossing would not have been associated with any significant time delay.

In order to establish a breach of duty, assuming without deciding that a duty of care exists, Vero would need to show that RailCorp was in breach of its duty in accordance with the provisions of the Civil Liability Act 2002. Vero at all times bore the onus of proof on this issue. In the circumstances of this case, the provisions of s 5B and s 5C of the Civil Liability Act require careful attention.

The opinion of Mr Keramidas that had the train been travelling at a significantly slower speed, that is, 80km/h or less, it would n to have derailed, is not of itself sufficient to demonstrate a breach of duty. Nor is it sufficient to prove that it was open to, or possible for, RailCorp to limit the speed of trains over this crossing. Whilst these are necessary facts to prove, they are not, without more, sufficient to establish a breach of duty.

Section 5B(1)(c) requires a claimant to establish breach by proving that "in the circumstances, a reasonable person, in the person's position, would have taken those precautions".

Section 5B(2) requires a court to consider (amongst other relevant things) the burden of taking those precautions.

Section 5C(a) defines the burden of taking precautions as including the burden of taking precautions to avoid similar risks of harm for which the person may be responsible.

The evidence disclosed that at the time of this collision, there were 3000 level crossings throughout New South Wales. According to Mr Keramidas this crossing was ranked number 100 on an upgrade priority list. Accordingly to the OTSI Report, this crossing was "... unremarkable from many others throughout NSW".

The priority for upgrading of level crossings is reviewed by the NSW Joint Parliamentary Committee Level Crossing Sub-Committee.

Other than these references, which indicate that RailCorp's burden of taking precautions included at least 99 other crossings of similar or greater priority for safety upgrade, there was no evidence about whether a speed reduction, or other precautions to achieve the same result, could be implemented, what effect this change might have, whether it was likely to be effective and what the cost implications, if any, were.

As well, there was no evidence about what, if any, adverse effect such a change would have on timetabling of other scheduled passenger services, or freight train usage of the track.

I do not need any evidence to know that timetabling of trains is likely to be a complex matter, and that the alteration of a timetable by a permanent speed reduction, may be likely to affect other train movements on this or any connected line.

However, Vero led no evidence which addressed any of these matters, nor did it attempt to prove that on this particular crossing the burden of taking the precautions which it asserted should have been taken, was minimal and if not minimal, could have been overcome with little expense or inconvenience.

I am not satisfied that the evidence adduced by Vero is sufficient to enable a finding to be made that the plaintiffs (or either of them) were negligent in and about the fixing of the maximum speed limit for trains travelling through this crossing.

A complete defence

In its defence, Vero pleaded what it said was a complete answer to the second plaintiff (CRIA)'s claim in the following terms:

"... the defendant says that the second plaintiff is precluded from proceeding with the action against the defendant as a result of the agreement reached with the defendant to discontinue the proceedings and pay the defendant's costs.

Particulars

Notice of Discontinuance signed by Robert Crittenden on behalf of the second plaintiff on 13 May 2009 and Mark Graham Williams on behalf of the defendant on 29 May 2009."

In short, it contended that there was an enforceable agreement that CRIA discontinued its action. In support of that pleading, Vero called its solicitor, Mr Mark Williams. It relied upon his affidavit sworn 16 June 2010.

The evidence discloses that in March 2009, Mr Crittenden the solicitor for the Rail Infrastructure Corporation, the statutory predecessor of CRIA, had a telephone conversation with Mr Williams.

Mr Crittenden, told Mr Williams that his client may be willing to discontinue the proceedings on the basis of each party paying their own costs. He made it plain that his client did not think that it was "a big player" and was "starting to doubt whether it was worth pursuing the litigation given the amount of money involved".

Mr Williams obtained instructions, and on 3 April 2009, sent a letter to Mr Crittenden confirming a counter-offer which had been made the day before by email, namely that Vero would agree to a termination of the litigation on the basis of a judgment in its favour and each party bearing their own costs. To that counter-offer he added this important reservation:

"We stress that the entering into such an agreement will not, in any way, prevent Vero from bringing a cross-claim against RIC seeking indemnity and/or contribution in relation to the action brought against Vero by RailCorp (liability is denied) and that all rights in this regard are reserved."

In his evidence, Mr Williams confirmed that Vero's position has been since it made the counter-offer, at all times, that whatever RIC did with respect to its claim, Vero intended to file a cross-claim back against RIC. Mr Williams agreed that that would have the consequence that whatever happened to RIC's claim, in the event that it was discontinued, RIC would not cease to be a party to the proceedings.

Mr Williams acknowledged that it was his understanding that Mr Crittenden, the solicitor for RIC, had at all times explained to him that the motivating factor behind RIC making the offer which it did, was that the Chief Executive Officer of the RIC simply did not want to be involved in this sort of litigation at all.

On 3 June 2009, the solicitors for RIC sent Mr Williams a letter which included the following paragraph:

"In light of your indication to the Court that the Defendant will be filing a Cross-Claim against Rail Infrastructure Corporation and the fact that it will remain a party to the proceedings, Rail Infrastructure Corporation no longer wishes to discontinue its claim against the Defendant. Accordingly, we will not be proceeding with the filing of the Notice of Discontinuance."

In response, it was asserted that there was a binding agreement.

I have no hesitation in accepting Mr Williams' evidence. It was, so it seemed to me, accurate and Mr Williams made appropriate concessions.

I note that in final submissions, both in writing and orally, senior counsel for Vero did not address any submissions to this defence, nor did he submit that on the evidence a defence of enforceable agreement, or estoppel or the like, had been made out.

Since senior counsel for the plaintiffs addressed short oral submissions to the point, although it appears that Vero may have abandoned this defence, it is perhaps as well that I deal with it.

I am not satisfied on the facts that the defence has been made out. Having regard to the reservation clearly enunciated by Mr Williams on behalf of his client in the course of the negotiations, namely that whatever happened in the principal proceedings, his client was intended, and reserved all rights, to bring RIC back into the proceedings as a cross defendant, and in the context of the knowledge of Vero's solicitor, as a result of his conversations with Mr Crittenden, the solicitor for RIC, that in making its offer of compromise, by way of a notice of discontinuance, the intention of RIC, through its Chief Executive Officer, was to cease, in all respects, to be a party to the litigation, I am not satisfied that there was any agreement reached between the parties which could be enforced in the terms of the notice of discontinuance which was previously signed and sent between the parties.

Shortly put, the minds of these two parties were never "ad idem". The context in which that notice of discontinuance was sent was one which was premised upon the basis that RIC would be excused completely from the litigation. That was never Vero's intention.

In those circumstances, I am not satisfied that the defence as pleaded is made out.

Damages

As I have earlier indicated, Mr Owain Stone prepared a report on the extent of the plaintiffs' loss and damage which, by consent, was adopted.

Both parties accepted that the quantification of Mr Stone was correct.

The defendants disputed, assuming that they were otherwise liable, that they were obliged to pay the sum of $148,809.60 which represented the expenses and losses which RailCorp incurred in supplying alternate transport for passengers whilst the railway line was inoperative, immediately after the collision.

Before coming to deal with that question, it is appropriate that I record the conclusions about which there was no dispute. They were:

(a) the cost to RailCorp, which constituted a fair and reasonable sum, for the repairs to the rolling stock, that is, the train, was $3,179,286.00;

(b) after the repairs were carried out, there was no increase in the commercial market value of the train. In other words, there had been no betterment by any identifiable sum;

I note that none of these sums included interest.

The argument about the alternate transport costs is simply stated. Vero submits that the cover under the policy extends only to "loss or damage to other people's property". It submits that the alternate transport costs constitute pure economic loss rather than loss or damage to property, and further represent a cost incurred in RailCorp undertaking its business of continuing to provide passenger transport.

I accept Vero's submission that a claim for pure economic loss, as this one is, is not a claim which falls under the phrase "loss or damage to other people's property".

The question is, however, whether the more extended, composite phrase to be found in the Policy, namely, "legal liability for loss or damage to other people's property" incorporates a claim for consequential pure economic loss.

As I have earlier set out, that extended term depends upon a court finding that the insured, here Mrs Jeffries, is "legally responsible to pay compensation for loss or damage to property owned or controlled by someone else". The specific term is that the insured is obliged to pay compensation for loss or damage to property. The claim here is not related to a consequential economic loss claim which derives from or is ultimately connected to damage to property. For example, the claim does not incorporate the cost of a tow truck, or crane, to remove the damaged property. That, I would have thought, is a consequential loss directly related to the damage to the property.

Here I am satisfied that the claim for alternative transport costs relates in a real sense to the running of RailCorp's passenger services and not to the damage to the property. Had RailCorp, for example, simply cancelled all services, it would not have been liable to pay compensation to intending, but disappointed, passengers. The alternative transport costs derived directly and proximately from its decision to provide alternate forms of transport for intending passengers.

In all of the circumstances I am not disposed to allow the claim because it falls outside the coverage in the Policy.

Even if RailCorp succeeded against Mrs Jeffries in respect of this claim, Vero would not have been obliged to indemnify Mrs Jeffries with respect to the claim.

Conclusion

In the result, I have determined that the plaintiffs, RailCorp and CRIA, are entitled to succeed with respect to their claims, except for the alternate transport costs.

I have found that Mrs Jeffries did not commit suicide, and that accordingly, the collision at the level crossing was an accident within the meaning of the policy issued by Vero, and that as a consequence of the provisions of s 51 of the Insurance Contracts Act, the plaintiffs are entitled to recover directly from Vero.

Having regard to the fact that it will be necessary for interest to be calculated, it is appropriate that parties are invited to bring in Short Minutes of Order.

On the question of costs, I see no reason why costs ought not follow the event and I would propose in due course to make such an order. If any other order is sought than costs follow the event on the usual basis, the parties ought bring in submissions to give effect to their seeking of an alternative order.

Orders

I make the following orders:

(1) Judgment for the plaintiffs.

(2) Parties to file and serve short minutes of order on or before 4pm 22 June 2012 setting out the orders for which they contend in light of the judgment.

(3) If any party seeks an order other than that the defendant is to pay the plaintiffs' costs on the usual basis, any such application together with submissions in support are to be filed and served by 4pm 22 June 2012.

(4) Stand proceedings over for further directions to 9.30am 29 June 2012.

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Decision last updated: 08 June 2012

Medium Neutral Citation:	Rail Corporation NSW v Vero Insurance Ltd [2012] NSWSC 632
Hearing dates:	18/04/2011-19/04/201127/04/2011, 29/04/2011,02/05/2011
Decision date:	08 June 2012
Jurisdiction:	Civil
Before:	Garling J
Decision:	(1) Judgment for the plaintiffs. (2) Parties to file and serve short minutes of order on or before 4pm 22 June 2012 setting out the orders for which they contend in light of the judgment. (3) If any party seeks an order other than that the defendant is to pay the plaintiffs' costs on the usual basis, any such application together with submissions in support are to be filed and served by 4pm 22 June 2012. (4) Stand proceedings over for further directions to 9.30am 29 June 2012.
Catchwords:	CIVIL - Negligence - Collision between car and train at level crossing - Local driver of car deceased - Driver of car negligent - Whether contributory negligence by RailCorp or Country Rail Infrastructure Authority - Maximum speed through crossing not negligent CIVIL - Suicide - No presumption against committing suicide - Proper inference on the evidence - Whether intentionally drove car onto rail track to commit suicide - Collision due to inadvertence INSURANCE LAW - Collision between car and train at level crossing due to driver inadvertence - Driver of car deceased - Section 51 Insurance Contracts Act - Whether legal liability on the part of driver - Whether CTP insurer indemnified driver of car - Whether collision was accident within the meaning of the insurance policy - Accident undefined in policy - Common law principles - Collision accidental - Whether criminal offence excluding recovery - Difference between civil and criminal negligence - Plaintiffs entitled to recover from insurer - INSURANCE LAW - Collision between car and train at level crossing - Whether claim by RailCorp for alternative travel costs within insurance indemnity - Alternate transport costs pure economic loss - Whether policy's 'legal liability for loss or damage to other people's property' incorporates claim for pure economic loss - Alternate transport relates to running RailCorp's passenger services and not to damage of property - Outside coverage of policy ESTOPPEL - Whether Country Rail Infrastructure Authority precluded from proceeding with claim because of conduct prior to commencing proceedings - Whether 2009 agreement between second plaintiff and defendant to discontinue proceedings - Reservation to defendant's agreement that not prevented from bringing cross-claim - No basis second plaintiff would be excused completely from litigation - Defence not established
Legislation Cited:	Civil Liability Act 2002 Crimes Act 1900 Insurance Contracts Act 1984 (Cth) Rail Safety Act 2008 Transport Administration Act 1988
Cases Cited:	American House Assurance Company v King (as Executrix of the Estate of the Late Frederick King) [2001] NSWCA 201 Australian Casualty Co Ltd v Federico (1986) 160 CLR 513 Fenton v Thorley & Co Ltd [1903] AC 443 Lasermax Engineering Pty Limited v QBE Insurance (Australia) Limited [2005] NSWCA 66 Maggbury Pty Limited v Hafele Australia Pty Limited [2001] HCA 70; 210 CLR 181 McCann v Switzerland Insurance Australia Ltd [2000] HCA 65; 203 CLR 579 Pacific Carriers Limited v BNP Paribas [2004] HCA 35; 218 CLR 451 Phoenix Commercial Enterprises Pty Limited v City of Canada Bay Council [2010] NSWCA 64 Wilkie v Gordian Runoff Limited [2005] HCA 17; 221 CLR 522
Category:	Principal judgment
Parties:	Rail Corporation NSW (P1) Country Rail Infrastructure Authority (P2) Vero Insurance Ltd (D)
Representation:	G Watson SC / D Lloyd (P1-2) R Burbidge QC / M Scott (D) DLA Phillips Fox (P1-2) Lander & Rogers (D)
File Number(s):	2008/289483